CITY MAYOR PERSONAL REPRESENTATIVE AND BENEFICIARY OF ESTATE SELLING LAND TO CITY

To:(Name withheld at the person's request.)

SUMMARY:

No prohibited conflict of interest would be created were an estate, of which a city mayor is the personal representative and a beneficiary, to sell a tract of land to the city to enable the city to comply with State and federal orders requiring the construction of a new sewer plant. Although Section 112.313(3), Florida Statutes, prohibits a city mayor from acting in a private capacity to sell any realty to the city, the exemption for emergency purchases contained in Section 112.313(12)(d) would apply under the circumstances presented.

QUESTION:

Would a prohibited conflict of interest be created were an estate, of which a city mayor is the personal representative and a beneficiary, to sell a tract of land to the city for the construction of a maintenance building and warehouse?

Your question is answered in the negative under the circumstances you have presented.

In your letter of inquiry and in a telephone conversation with our staff you have advised that Ms. Pauline Turner is the Mayor and a member of the City Commission of the City of Marianna. You also advise that the City recently entered into a consent order with the Department of Environmental Regulation and became subject to an administrative order of the U.S. Environmental Protection Agency directing the City to commence construction of a new sewer plant no later than May 1, 1984. The only suitable property for this plant is the property adjacent to the old sewer plant, since all sewer lines lead there. As the City's maintenance building and warehouse are located upon the property to be used for the new sewer addition, the City is required to relocate these functions.

The City owns a five-acre tract of land within the City and was planning to relocate the maintenance building and warehouse on that tract, but the surrounding neighborhood was intensely opposed to constructing the facility on that property. At that time, the City Commission directed the City Manager to locate another tract of land within the City limits suitable for constructing this type of facility without interfering with the neighborhood, while staying within zoning regulations.

Given the size of the City, there were few tracts of land of five acres or more within the City limits which would be suitable for such a facility. The City Manager looked at all parcels of at least five acres within the City. One parcel already was planned by its owners for a shopping center. A second parcel was determined by the City Manager to be unsuitable without extensive improvements for paving and drainage, as it was located in a low area and had a clay base which would have resulted in vehicles being stored there getting stuck when it rained.

The third parcel was found to be most suitable as to location and feasible as to price. The City Commission was advised of this property and gave unanimous consent for the City Manager to proceed to acquire it. The property is owned by two individuals and by the estate of the Mayor's late husband. The Mayor is the personal representative and a beneficiary of the estate. All activities concerning the purchase have been initiated by the City Manager, who located the property, discovered that the Mayor was an interested party, and therefore contacted the Mayor and other interested parties concerning the possible purchase.

Finally, you advise that time is of the essence in the transaction since the acquisition of the property, site preparation, engineering and architectural work, the bidding process, and construction have to be completed by May 1, 1984. The orders of the State and federal government carry penalties up to $10,000 per day for failure to perform. Thus, it is imperative that the acquisition process be commenced immediately in order to prevent the City from suffering this financial liability. Due to the time constraints under which the City must operate, condemnation proceedings would be impracticable, you advise.

The Code of Ethics for Public Officers and Employees provides in relevant part:

DOING BUSINESS WITH ONE'S AGENCY. -- No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or his spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(c) Appointment to public office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes (1981).]

This provision prohibits a City Mayor from acting in a private capacity to sell any realty to the City. However, an exemption to this prohibition exists where:

An emergency purchase or contract which would otherwise violate a provision of subsection (3) or subsection (7) must be made in order to protect the health, safety, or welfare of the citizens of the state or any political subdivision thereof. [Section 112.313(12)(d), Florida Statutes (1981).]

In our opinion, the purchase of the subject property under these circumstances falls within this exemption.

It appears that an emergency purchase is necessary. While we have advised that condemnation of property owned by a city official is not prohibited by the Code of Ethics (see CEO 76-7 and CEO 78-8), you have advised that condemnation is not practicable here because of time constraints. Under the terms of State and federal orders, the City must acquire land and construct the facility within seven months in order to commence construction on the new sewage plant. While the City in other circumstances might be able to wait for another suitable parcel to go on the market or might be able to condemn the property required, it does not appear that there is sufficient time to pursue either of these alternatives. We note that the circumstances presented give no indication that the emergency situation has been created through delay on the City's part. In addition, it appears that the purchase is necessary to protect the health and welfare of the citizens of the City within the meaning of Section 112.313(12)(d), Florida Statutes, by enabling construction of the new sewage plant and by avoiding monetary penalties for failure to comply with the State and federal orders.

Accordingly, we find that no prohibited conflict of interest would be created were the City to purchase the subject parcel from the estate of which the Mayor is the personal representative and a beneficiary.